CHAPTER 6.II. Sample Motions

• Jurisdiction: United States

II. Sample Motions

A. Motion to Exclude Evidence of Claim Denied During Discovery

NO.__________

__________

v.

__________

IN THE DISTRICT COURT

__________ JUDICIAL COURT

__________ COUNTY, TEXAS

Motion to Exclude Evidence of Claim Denied During Discovery

Come now___, Plaintiff in this cause, and file this, her Motion to Exclude Evidence of Claims Denied During discovery, and in support would show the Court the following:

I. FACTUAL BACKGROUND

This action arises from a rear-end automobile accident between Plaintiff and Defendant that occurred on September 18, 2016. As a result of the accident, Plaintiff claims to have sustained neck and back injuries and lost wages.

On June 12, 2017, Defendant noticed Plaintiff's deposition. The notice, in part, requested that Plaintiff produce documents pertaining to his wage loss claim. A copy of the deposition notice is attached hereto as exhibit "A." When asked at the deposition whether he had any documents to support the claim, Plaintiff responded "None." When asked whether he was seeking reimbursement for lost wages, the Plaintiff responded, "I'm not sure, no." Relevant portions of Plaintiff's deposition transcripts are attached hereto as Exhibit "B." See Exhibit "B" at Lines 10-15.

On August 21, 2017, Defendant served First Demand for Inspection of Documents ("Inspection Demand"), asking, at Request No. 2, for "Any and all documents pertaining to your claim for lost wages or lost earning capacity." A copy of Defendant's Inspection Demand is attached hereto as exhibit "C." In Plaintiff's response to Request No. 2 of the Inspection Demand, Plaintiff responded "None." A copy of Plaintiff's response to Defendant's Inspection Demand is attached hereto as exhibit "D."

Up until the date of the pretrial conference in this matter—just ten (10) days before trial on January 10, 2019—Plaintiff had provided no documents to support a claim for loss of earnings or earning capacity. At the pretrial conference, Plaintiff's counsel indicated that Plaintiff would be offering several payroll documents at trial relating to Plaintiff's earnings history.

By this motion, Defendant seeks an order excluding any and all evidence pertaining to Plaintiff's wage loss claim.

2. THIS COURT MAY EXCLUDE PREJUDICIAL EVIDENCE IN ADVANCE OF TRIAL BY WAY OF AN IN LIMINE MOTION

The Court has the inherent power to grant a motion in limine to exclude evidence which could be objected to at trial, either as irrelevant or subject to exclusion as unduly prejudicial. Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917, 920 n.3 (Tex. 2016); In re BCH Development, LLC, 525 S.W.3d 920, 925 (Tex. App.—Dallas 2017, orig. proceeding). Texas Rule of Evidence 403 allows the court to exclude evidence where there is a substantial danger that the probative value will be outweighed by the danger of undue prejudice. See Diamond Offshore Services Ltd. v. Williams, 542 S.W.3d 539, 549 (Tex. 2018); Brookshire Bros. v. Aldridge, 438 S.W.3d 9, 34 (Tex. 2014).

Moreover, the court may hear and determine the question of the admissibility of evidence outside the presence or hearing of the jury. See Weidner v. Sanchez, 14 S.W.3d 353, 363 (Tex. App.—Houston [14th Dist.] 2000, no pet.); Kendrix v. S. Pac. Transp. Co., 907 S.W.2d 111, 113 (Tex. App.—Beaumont 1995, writ denied); Texas Rule of Civil Procedure 166; and Texas Rules of Evidence 103 and 104.

3. EVIDENCE OF PLAINTIFF'S LOST WAGE CLAIM SHOULD BE EXCLUDED TO PREVENT UNFAIR SURPRISE TO DEFENDANT

To avoid unfair surprise, the Court may exclude evidence on issues where discovery responses and actions of counsel led opposing counsel to believe those issues would not be litigated. Capital Metro. Transp. Auth./Cent. of Tenn. Ry. & Navigation Co. v. Cent. of Tenn. Ry. & Navigation Co. 114 S.W.3d 573, 583 (Tex. App.—Austin 2003, pet. denied) (evidence of damages for failure to disclose information until shortly before trial properly excluded where court implicitly found unfair surprise from late disclosure); Magnuson v. Mullen, 65 S.W.3d 815, 823 (Tex. App.—Fort Worth 2002, pet. denied) (plaintiff frustrated defendant's attempt to define litigation through discovery process and therefore, dismissal of plaintiff's lawsuit, with prejudice, warranted as sanction for failure to comply with discovery); Matagorda County Hosp. Dist. v. Burwell, 94 S.W.3d 75, 82 (Tex. App.—Corpus Christi 2002), rev'd on other grounds, 189 S.W.3d 738 (Tex. 2006) (witness testimony not disclosed in timely manner properly excluded where unfair surprise to opposing party).

The court is within its power to preclude a party from introducing documents not discovered by the opposing party, where relevant evidence is not disclosed during discovery. See F & H Invs. Inc. v. State, 55 S.W.3d 663, 671 (Tex. App.—Waco 2001, no pet.) (trial court abused discretion not excluding undisclosed evidence and witnesses where unfair surprise to opposing party).

In the present case, Plaintiff's statements and actions led Defendant to reasonably believe that Plaintiff would not be pursuing the wage loss claim. Plaintiff responded at his deposition that he would not be seeking reimbursement for his lost wages claim. See Exhibit "B" at Lines 10-15. Plaintiff produced no documentation that would support the claim, despite several formal discovery requests by Defendant. See Exhibits "A," "C," and "D."

The first indication that Plaintiff would be offering any evidence on the lost wages claim was at the Issue Conference—just days before the commencement of trial and after the discovery cut-off date. Clearly, Plaintiff knew or should have known that these documents existed when asked at deposition or through other discovery requests. Failure to produce the documents suggests strongly that they were suppressed by the Plaintiff.

The Defendant will suffer undue prejudice if Plaintiff is permitted to testify or introduce any documentation at trial to support his claim for lost wages. As such, this court should exclude any and all evidence, including any mention of evidence, relating to Plaintiff's lost wage claim.

4. PLAINTIFF'S LOST WAGE EVIDENCE WAS NOT DISPUTED THROUGHOUT DISCOVERY

Texas Rule of Evidence 402 states that "evidence which is not relevant is inadmissible." Relevant evidence is defined by Texas Rule of Evidence 401 as "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." See Torrington v. Stutzman, 46 S.W.3d 829, 845 n.13 (Tex. 2000). Irrelevant evidence is not admissible. Morale v. State, 557 S.W.3d 569, 573 (Tex. 2018); Diamond Offshore Services Ltd. v. Williams, 542 S.W.3d 539, 549 (Tex. 2018).

The Court may exclude evidence on matters that are not in dispute. Palomo v. State, 925 S.W.2d 329, 337 (Tex. App.—Corpus Christi 1996, no pet.) (evidence defendant had...